Gere v. Council Bluffs Ins. Co.
| Decision Date | 23 October 1885 |
| Citation | 23 N.W. 137,67 Iowa 272 |
| Parties | GERE v. THE COUNCIL BLUFFS INS. CO |
| Court | Iowa Supreme Court |
Appeal from Cherokee Circuit Court.
ACTION upon two policies of fire insurance. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.
AFFIRMED.
E. C Herrick and Sapp & Pusey, for appellant.
A. F Meservey and J. D. F. Smith, for appellee.
I.
The policies contained a condition in these words: "In case difference shall arise as to the amount of loss or damage the subject shall, at the request of either party, be referred to two competent and disinterested arbitrators, each party to select one, (and in case of disagreement they to select a third,) who shall ascertain the damages on each article; and their award, in writing, shall be binding as to the amount of such loss or damage." The loss in question occurred on the sixteenth day of August, 1883. Proofs of loss were made on the fourth day of the next month, and the amount due upon the policies became payable at that time. The company, however, did not pay, and the plaintiff, Mrs. N. M. Gere, commenced this her action on the tenth day of January, 1884. On the nineteenth day of April, 1884, the defendant served a written request upon the plaintiff for an arbitration of the amount of the loss. To this request we infer that the plaintiff paid no attention. On the twenty-first day of April, 1884, the defendant filed an answer setting out the provision of the policy in respect to an arbitration, and pleading the service of the written request. To so much of the answer as pleaded the request for arbitration the plaintiff demurred, and the demurrer was sustained. The defendant assigns as error the ruling upon the demurrer.
The agreement to arbitrate the amount of the loss, and the failure to choose an arbitrator after service of the written request, would not, in our opinion, constitute a defense, unless the arbitration should be deemed a condition precedent to the right to sue. The defendant, indeed, as we understand, does not contend that it would. Its contention is that an arbitration is a condition precedent to a right to sue. But it is to be observed that it is not expressly so provided, nor, indeed, is an arbitration to be had at all, except one of the parties requests it. The agreement, then, to arbitrate the amount of loss on the written request of either party was, we think, nothing more than a mode of providing what should be deemed conclusive evidence of one of the facts. Whether the written request was served too late or not we need not determine. If it was not too late, the plaintiff, at the time the answer was filed, might still be allowed to choose an arbitrator, and procure her evidence in the mode agreed. If the defendant, upon the trial, had objected to the testimony which was offered as to the amount of the loss, on the ground that the parties had agreed upon another mode of establishing such fact, possibly the defendant's objection should have been sustained. But we see no such objection. It had proceeded upon the theory that the failure to ascertain the amount of loss in the mode agreed was a defense, and so pleaded it, and relied simply upon saving an exception to the ruling of the court in holding that it was not a defense. What should have been the ruling of the court if objection had been made to the testimony offered in regard to the amount of the loss we do not determine. In our opinion the ruling of the court upon the demurrer was correct.
II. One of the policies was upon a stallion alleged to be a thoroughbred Clydesdale, and of the value of $ 1,000. To prove his value the plaintiff introduced as witnesses one Condon and one Hunter. The defendant objected to their being examined, the objection being based upon the ground that it did not appear that they were competent to testify. The objection was overruled, and the defendant assigns the ruling as error. The witnesses showed that they were engaged in farming generally and stock-raising, but were not able to speak with much confidence as to the breed of the horse in question. But they showed that they were acquainted with the horse, and claimed to know his value. We are by no means certain that a farmer engaged in raising horses for the market, and directly interested in stallions, may not exercise about as...
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